Wednesday, 31 August 2011

Bruylant Publishers has announced that it will publish, in November, a liber amicorum dedicated to the retiring Greek judge Rozakis. The bilingual book has been edited by Dean Spielmann, Marialena Tsirli and Panayotis Voyatzis and is entitled 'La Convention européenne des droits de l’homme, un instrument vivant / The European Convention on Human Rights, a living instrument'. It's theme is the living instrument doctrine. This is the abstract:

Christos Rozakis served the European Court and the former Commission of Human Rights for twenty-four years, first as a member of the Commission and later as a judge and Vice-President of the Court. On the occasion of his retirement, his colleagues, friends and collaborators wish to express their affection for him and honour his exceptional contribution to the construction of a European system for the protection of human rights.

The theme chosen for this compilation of essays is the European Convention as a “living instrument” intended to be interpreted in the light of present-day conditions. This is how Christos Rozakis approached the text of the Convention during his career in Strasbourg. This approach is based on an evolutive interpretation of the articles of the Convention aimed at enhancing the effectiveness of human rights in modern European society.

The variety of issues linked to the dynamic method of interpretation of the Convention is reflected in the topics covered by the authors of the different contributions to this book. These original contributions, each dealing with an issue of topical interest, constitute a testimony to this person who has contributed in such an important way to the influence of the jurisprudence of the European Court.

Whereas it is common today to focus on the overwhelming backlog of applications before the European Court of Human Rights, this book deliberately shows that the Court in Strasbourg could be seized by even more applicants if States Parties really confirmed to Article 34 ECHR, according to which “The High Contracting Parties undertake not to hinder in any way the effective exercise of this right”. In the past fifty years however, more and more direct or indirect hindrances have been devised.

This volume takes a very concrete and practical look at these hindrances and brings together both researchers and human rights defenders. After an introduction to the topic in Part 1, the second part of the book analyses the hindrances involving the most vulnerable groups (prisoners, migrants and foreigners) while the final Part deals with concrete experiences and sets forth a number of recommendations for a better prevention and sanctioning of these hindrances.

The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.

The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.

Wednesday, 24 August 2011

It is my great joy to announce that a book edited by my good friend Michael Hamilton (Central European University & Ulster University) and myself, entitled 'Transitional Jurisprudence and the ECHR. Justice, Politics and Rights' has just been published by Cambridge University Press. After three years of work from initial idea to this final product, we are grateful for the contributions of many. This is the product of a cooperative research project on this theme between researchers from SIM at Utrecht University, Ulster University, Durham University, American University, and New York University. The foreword was written by Ruti Teitel. This is the abstract:

The European Convention on Human Rights has been a standard-setting text for transitions to peace and democracy in states throughout Europe. This book analyses the content, role and effects of the jurisprudence of the European Court relating to societies in transition. It features a wide range of transitional challenges, from killings by security forces in Northern Ireland to property restitution in East Central Europe, and from political upheaval in the Balkans to the position of religious minorities and Roma. Has the European Court developed a specific transitional jurisprudence? How do politics affect the ways in which the Court's judgments are implemented? Does the Court's case-law itself become woven into narratives of struggle in transitional societies? This book seeks to answer these questions by highlighting the unique role of Europe's main guardian of human rights, the Court in Strasbourg. It includes a comparison with the Inter-American and African human rights systems.

And this is the table of contents:

1. Introduction, Michael Hamilton and Antoine Buyse
2. Transitional emergency jurisprudence: derogation and transition, Fionnuala Ní Aoláin
3. Rights and victims, martyrs and memories: the European Court of Human Rights and political transition in Northern Ireland, Kris Brown
4. The ECHR and transition: confronting the consequences of authoritarianism and conflict, Christopher Lamont
5. Freedom of religion and democratic transition, James Sweeney
6. The truth, the past and the present: Article 10 of the ECHR and situations of transition, Antoine Buyse
7. Transition, political loyalties and the order of the state, Michael Hamilton
8. Transition, equality and non-discrimination, Anne Smith and Rory O'Connell
9. Closing the door on restitution: the European Court of Human Rights, Tom Allen and Benedict Douglas
10. The inter-American human rights system and transitional processes, Diego Rodriquez-Pinzon
11. The 'transitional' jurisprudence of the African Commission on Human and Peoples' Rights, Gina Bekker
12. Conclusions, Antoine Buyse and Michael Hamilton.

Tuesday, 23 August 2011

Please find below the "summer harvest" of academic articles published about the European Convention on Human Rights in the past few months in a wide variety of academic journals, in no particular order:

* M. Milanovic, 'Applicability of the ECHR to British soldiers in Iraq', Cambridge Law Journal (vol. 70, no. 1, 2011).

Monday, 22 August 2011

More news that might have escaped attention during the summer: the Court itself reports that its new filtering section, set up in the wake of Interlaken and Protocol 14, to assign in the most efficient way incoming applications to the right formation of judges, seems to be working efficiently, and has started to save time already. It deals with applications directed against five of the countries with the highest case-number: Russia, Turkey, Romania, Ukraine and Poland. This is the full press release from the Court's website:

Filtering Section speeds up processing of cases from highest case-count countriesOne of the main challenges facing the Court is the efficient filtering out of the very large number of inadmissible cases brought before it each year. It is estimated that up to 90% of the cases coming into the Court’s Registry are found to be inadmissible. Over the years the Court has progressively streamlined this stage of its procedure, but further impetus to this process was given by the entry into force of Protocol No. 14 and the establishment of the Single Judge formation. This meant that a Judge sitting alone, assisted by a Non-Judicial Rapporteur, could declare applications inadmissible, whereas previously three Judges had been required. With a view to making the most of this new procedure and encouraged to innovate in this area by the Inter-Governmental Conference at Interlaken in February 2010, the Court has set up a new Filtering Section centralising the handling of the incoming cases from five of the highest case-count countries: Russia, Turkey, Romania, Ukraine and Poland. These countries account for over half of the cases pending before the Court.
The Filtering Section has been in operation since the beginning of 2011. Its principal function is to carry out a thorough, accurate and immediate sifting of cases to ensure that all applications are placed on the appropriate procedural track, whether submitted to a Single Judge for prompt decision or sent to await examination by a Committee of three judges or Chamber in accordance with the Court’s priority policy. By centralising resources and streamlining working methods, it is intended to minimise the time taken to respond to applicants’ complaints and to reduce the backlog of unexamined cases.

After six months it is already clear that the creation of the Filtering Section has led to the development and sharing of best practices which have helped to speed up the administrative and legal processing of the incoming complaints.

By the end of June 2011, the Filtering Section had recorded 21,859 new applications. During the same period, 11, 369 applications against five States were dealt with by a Single Judge. This is an increase of 42 % compared with 2010.

The Filtering Section is able to sift and place on the right procedural track all the incoming applications. For Ukraine and Poland, all cases identified for treatment by Single Judge are being dealt with immediately. For Romania, the percentage of Single Judge cases dealt with immediately is more than 90%. For Russia and Turkey, the Filtering Section is able to deal with roughly 75% of the Single Judge cases.

Further modifications in organisation and procedure are envisaged in the second half of 2011 to improve efficiency still further.

The European Court of Human Rights (ECHR) has been criticized for issuing harsher judgments against developing states than it does against the states of Western Europe. It has also been seen by some observers as issuing increasingly demanding judgments. This paper develops a theory of judicial decision-making that accounts for these trends. In order to obtain higher compliance rates with the judgments that promote its preferences, the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgments, and loses reputation every time a state fails to comply with its judgments. Not every act of compliance has the same effect on the reputation of the court, however. When the judgment is costlier, the court will gain more reputation in the case of compliance. In an effort to build its reputation, in some cases the court will issue the costliest judgment with which it expects the state to comply. Since the ECHR receives high compliance rates, its reputation increases, which leads it to issue costlier judgments. The court restrains itself when facing high-reputation states that can severely damage its reputation by noncompliance or criticism, so it demands more from low-reputation states.

The European Court of Human Rights between Law and Politics provides a comprehensive analysis of the origins and development of one of the most striking supranational judicial institutions. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and ongoing political reform of the Court. The broad analysis based on historical, legal, and social science perspectives provides new insights into the institutional crisis of the Court and identifies the lessons that can be learned for the future of the European Convention on Human Rights and Fundamental Freedoms.

The European Court of Human Rights is in many ways is an unparalleled success. The Court embarked, during the 1970s, upon the development of a progressive and genuinely European jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from 47 different countries, the European system is once again deeply challenged - this time by a massive case load and by the Member States' increased reluctance towards the Court. This book paves the way for a better understanding of the system and hence a better basis for choosing the direction of the next stage of development.

Tuesday, 16 August 2011

Responding to the earlier reported high rise in requests for interim measures, the Court has recently issued new instructions on such measures. They specifically relate to request concerning suspension of expulsions, which take up a big part of the total number of such requests. The instructions specifically indicate that the requests should include specifics and should be timely. They also indicate that they should be sent by fax or post, not email (sic!). In order to avoid problems with timing, lawyers of applicant are requested to keep a watchful eye. For example:

Where the final domestic decision is imminent and there is a risk of immediate enforcement, especially in extradition or deportation cases, applicants and their representatives should submit the request for interim measures without waiting for that decision, indicating clearly the date on which it will be taken and that the request is subject to the final domestic decision being negative.

The Court re-emphasizes that it is not an appeal tribunal for domestic courts.

The Court has also published specific statistics on the decisions on interim measures in the first half (1 January to 30 June) of 2011. These statistics clearly show that of the over 1250 decisions by the Court on requests for interim measures on expulsions, only approximately 20% were positive - that is, accepting the request. Between the lines of the charts the message seems to be: chances of success are not too big. The statistics show both from which ECHR state parties the requests originated (i.e. applicants complaining against those countries) and the states to which expuslion was due. They show that of the accepted requests, the number one country to which expulsion was looming is a ECHR state party itself: Greece. The M.S.S. v. Belgium and Greece case of January thus has had immediate effects on practice. The only two other ECHR state parties featuring in that same list are Russia and Italy. For anyone following refugee and migratory patterns, it may not come as a surprise that Iraq and Afghanistan feature in the top 5 - both of accepted and of refused requests for measures by the way. Such statistics will be published every six months from now on.

Both the new instructions and the statistics are part of a larger move of the Court to increase the level of specific and accessible information, especially to applicants and their lawyers. More information, it is assumed, will make people think twice before launching themselves in a Strasbourg legal adventure. Such attempts have their limits, however - Strasbourg can only do so much. The probability of success hinges to a much greater degree on national education and information initiatives and eventually on national steps to strengthen human rights protection. In any event, these new instructions will certainly not be the end of the story.

Monday, 15 August 2011

A brand new edition of the very accessible and practical (and elaborate) book 'Taking a Case to the European Court of Human Rights' by Philip Leach has just been published at Oxford University Press. Leach is both an academic - professor at London Metropolitan University - and a practitioner - director of the European Human Rights Advocacy Centre (EHRAC) through which he and his team have assisted many applicants at the European Court of Human Rights with legal advice. This is the abstract:

Now in its third edition, Taking a Case to the European Court of Human Rights is written by an experienced human rights practitioner. It provides practical and accessible guidance on taking cases to the European Court of Human Rights. It incorporates a step-by-step approach to the litigation process, covering areas such as lodging the initial application, legal aid, costs, interim measures, friendly settlement, third party intervention, just satisfaction, enforcement of judgments, and Grand Chamber referrals.

An explanation of the key principles underlying the European Convention on Human Rights precedes an expanded and up-to-date article-by-article commentary on the substantive law of the European Convention, including derogation, reservation, and damages. The new edition has been fully revised to take account of the changes introduced by Protocol 14 in 2010.

The book includes key substantive case law developments, commentary and guidance on the amended Court rules and new practice directions, and recent changes in the Court's processing of cases, together with advice and information on drafting pleadings, fact-finding and merits hearings before the Court.

The Court's admissibility criteria, a critical aspect of the Convention system, are dealt with in detail, and a comprehensive set of Court forms and other precedents are included in the appendices.

A valuable tool for practioners and recommended by the current president of the Court, who referred to it as "a practical guide to the Convention system, Philip Leach's book has proved itself to be indispensable. The new edition of the book should find an immediate place on the shelves of any practitioner contemplating bringing an application to the Court."